01a60209
03-31-2006
Chrystalynne Calvin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Chrystalynne Calvin v. United States Postal Service
01A60209
March 31, 2006
.
Chrystalynne Calvin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60209
Agency No. 4J-604-0114-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 5, 2005, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In her
complaint, complainant alleged that she was subjected to discrimination
and harassment on the bases of race (African-American), sex (female), and
reprisal for prior EEO activity when: (1) on May 20, 2005, complainant
requested to leave early due to a migraine headache and was placed on
an Emergency Placement in an Off-Duty status; and (2) on June 24, 2005,
complainant was issued a Notice of Removal (Notice) dated June 23, 2005,
for unacceptable conduct.
The agency issued its decision dismissing the matter pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. As to claim
(1), the agency indicated that complainant also filed a grievance on
the matter and the Emergency Placement was rescinded and complainant was
provided with back pay. As to claim (2), the agency noted that, pursuant
to a grievance settlement, the Notice was reduced to a Letter of Warning
(LOW). Therefore, the agency interpreted complainant's complaint to be
a collateral attack on the grievance process by challenging the outcomes
of her grievances. As such, the agency dismissed the complaint for
failure to state a claim.
Complainant appealed asserting that the grievances were not at issue.
Complainant asserted that her claim is based on the Notice of Removal
and the Emergency Placement. The agency, in response to complainant's
appeal, argued that complainant has not shown that she was aggrieved.
Therefore, the agency requested that the Commission affirm the dismissal
of the complaint.
Upon review, the Commission finds that the dismissal is more properly
analyzed as to whether it has been rendered moot by the grievances which
rescinded the Emergency Placement and reduced the Notice to a LOW.
The regulation set forth at 29 C.F.R. � 1614.107(a)(5) provides for
the dismissal of a complaint when the issues raised therein are moot.
To determine whether the issues raised in complainant's complaint are
moot, the fact finder must ascertain whether (1) it can be said with
assurance that there is no reasonable expectation that the alleged
violation will recur; and (2) interim relief or events have completely
and irrevocably eradicated the effects of the alleged discrimination.
See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979); Kuo
v. Department of the Navy, EEOC Request No. 05970343 (July 10, 1998).
When such circumstances exist, no relief is available and no need for
a determination of the rights of the parties is presented.
We determined that claim 2 has not been rendered moot. In particular,
the Notice has been reduced to a LOW. Therefore, the effects of the
alleged discrimination have not been eradicated. As to the complaint
as a whole, complainant also sought compensatory damages. Because
complainant requested compensatory damages, the agency should have
requested that complainant provide some objective proof of the alleged
damages incurred, as well as objective evidence linking those damages to
the adverse action at issue. See Allen v. United States Postal Serv.,
EEOC Request No. 05970672 (June 12, 1998); Benton v. Department of
Defense, EEOC Appeal No. 01932422 (December 3, 1993). As the agency did
not address the issue of compensatory damages, we find that dismissal
of the complaint is improper. See Rouston v. National Aeronautics and
Space Admin., EEOC Request No. 05970388 (March 18, 1999). Therefore,
we find that the dismissal of claims 1 and 2 was inappropriate.
Accordingly, the Commission reverses the dismissal of claims 1 and 2
and remand the complaint for further processing as ordered below.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. If you file a civil action, you must name as the defendant in
the complaint the person who is the official agency head or department
head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973,as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the
sole discretion of the Court. Filing a request for an attorney does not
extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the
paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 31, 2006
__________________
Date